[00:00:06] Speaker 01: Calling our last case of the morning, it's number 24, 1254, Lee v. Pooter School District, R1. [00:00:18] Speaker 02: May it please the court? [00:00:20] Speaker 02: Richard Lawson for the plaintiff's appellant families, Lee and Jurick. [00:00:26] Speaker 02: Time permitting, I'd like to reserve three minutes for rebuttal. [00:00:29] Speaker 02: There is one core issue before this court, which is do policies which discourage disclosure of a child's transgender status to the parents, does a school policy that discourages such disclosure violate a parent's fundamental rights under the 14th Amendment? [00:00:50] Speaker 02: If you look at the statement of the case presented by the district, [00:00:54] Speaker 02: There are a couple of reasons put forward for what motivated the policies. [00:01:00] Speaker 05: They want to create... Before you go there, can I get you... It seems like it's been shifted a bit over the process of the litigation. [00:01:09] Speaker 05: As I understand the current, the operative complaint [00:01:14] Speaker 05: You have a claim under substantive due process only. [00:01:18] Speaker 05: That is correct. [00:01:19] Speaker 05: No First Amendment claim. [00:01:21] Speaker 05: No. [00:01:21] Speaker 05: Okay. [00:01:22] Speaker 02: That is correct. [00:01:22] Speaker 05: We're just under substantive due process. [00:01:25] Speaker 02: Yes. [00:01:25] Speaker 02: The original complaint has seen some significant modifications. [00:01:29] Speaker 02: We would submit that the one count that remains in the First Amendment complaint was in the first. [00:01:34] Speaker 02: version of the complaint. [00:01:35] Speaker 02: But we've eliminated some of the defendants. [00:01:38] Speaker 02: We eliminated some of the plaintiffs with the children. [00:01:40] Speaker 02: So it's a very, very narrow on this issue. [00:01:43] Speaker 02: I think this also touches in to some of where I think some of the district court may have erred, maybe in bringing over some of the analysis that had been there before. [00:01:52] Speaker 02: But if we don't... Yes, Your Honor. [00:01:54] Speaker 01: Could we just... I'm interested in your telling us a little more about how the substantive due process claim [00:02:04] Speaker 02: Yes. [00:02:04] Speaker 01: May have evolved since the original complaint. [00:02:09] Speaker 01: And in particular, just trying to pin down what exactly the contours of the parental right are that you're advancing here. [00:02:20] Speaker 01: I mean, it seems like there are a number of formulations in the brief, and it would be helpful if we could get the distilled core [00:02:31] Speaker 01: version of the right and I'm going to throw something out here to see if I'm understanding it correctly. [00:02:37] Speaker 01: It seems like the parents are arguing they have a fundamental right to receive information from the school even if they haven't asked for it. [00:02:47] Speaker 02: I would not put that as the core argument that we're trying to raise. [00:02:53] Speaker 01: Well, I'm not talking about the argument. [00:02:55] Speaker 01: What's the right? [00:02:57] Speaker 01: How would you articulate the parent right [00:03:01] Speaker 01: that applies here? [00:03:02] Speaker 02: The parental right that applies here, I think, is best put forward in the Supreme Court's Troxel case, that it is presumed that fit parents act in the best interest of the child. [00:03:13] Speaker 02: And furthermore, that best interest decision is one [00:03:20] Speaker 02: that is accorded absolute deference to the fit parent. [00:03:26] Speaker 02: Our position here is the school district's policies are ones that presume that the district knows better. [00:03:33] Speaker 01: Well, now you're moving off the right. [00:03:35] Speaker 01: Yes. [00:03:35] Speaker 01: I'm interested in whether in this case you're trying to expand the scope of substantive due process or whether you're taking what's already established [00:03:50] Speaker 01: and saying that it's the circumstances here that violate the right. [00:03:55] Speaker 02: Well, we're definitely trying to do the latter of those two points. [00:03:59] Speaker 02: We are definitely trying to argue that under the established parental rights of far more, this is not weird. [00:04:09] Speaker 02: I want to be very clear, because this was a little confused. [00:04:11] Speaker 02: We did raise this a little bit in the original complaint and played an issue in the motion to dismiss. [00:04:16] Speaker 02: There is no issue here. [00:04:18] Speaker 02: that we are trying to control the curriculum at all of the district, okay? [00:04:22] Speaker 02: So that is not the issue. [00:04:24] Speaker 02: The issue is we have essentially a health issue between the children and the parents. [00:04:30] Speaker 05: And... But you know, I really was looking and looking thinking that this was going to be argued as a major medical concern and a health issue. [00:04:40] Speaker 05: It's not in the briefs. [00:04:42] Speaker 05: There's no argument. [00:04:43] Speaker 05: You don't even cite the cases about... [00:04:45] Speaker 05: treating parents' rights to decide health issues. [00:04:49] Speaker 05: You've got the one abortion case, but it didn't seem to me that's what you were arguing. [00:04:55] Speaker 02: I would submit that it's under the Parham case, where the Supreme Court there is discussing that the parents' right is superior on medical issues. [00:05:07] Speaker 02: They state most children are not able to make sound judgments regarding their medical care. [00:05:14] Speaker 05: But point me to somewhere in the brief where you said gender dysmorphia is a major medical concern and that's what our argument here is. [00:05:26] Speaker 05: That we have an absolute right to information about a major medical issue affecting our children. [00:05:32] Speaker 05: I looked and looked for it. [00:05:35] Speaker 02: I would look to the complaint where we talk about the discussion about suicidality. [00:05:41] Speaker 02: that was raised in the sessions. [00:05:44] Speaker 02: I mean, on its face, this issue is acknowledged by, I think, all parties, that there are major health issues associated with it. [00:05:52] Speaker 02: I think the Court is correct. [00:05:53] Speaker 01: I don't... But it seemed though... I understand what you're saying. [00:05:58] Speaker 01: And I wondered the same thing as Judge McHugh. [00:06:03] Speaker 01: But it seems that the arguments take more the form of [00:06:08] Speaker 01: parents' interest in making decisions about the children's education, not medical decisions. [00:06:16] Speaker 01: Now, if you wanted to argue that, that's your prerogative. [00:06:21] Speaker 01: But the question is, is that really what is now being put before us? [00:06:26] Speaker 01: And is that what the district court understood the argument to be? [00:06:31] Speaker 02: I submit that our brief tracks our motion for leave to amend. [00:06:36] Speaker 02: in which we make it unequivocal that we are not arguing any sort of the long litany of cases discussing parents choosing whether to go to a public school. [00:06:50] Speaker 02: I tried to make that very clear in the motion for leave to amend. [00:06:53] Speaker 02: And I would submit that one of the key errors from the district court is we rely on Troxel quite heavily. [00:07:00] Speaker 02: She barely gave it any attention. [00:07:02] Speaker 02: It was only one passing reference and not on the point. [00:07:04] Speaker 02: And I guess really where I'm coming from is I was conceptualizing our argument on the ideas of the best interest of the child being very different from the, hey, if you don't like the school curriculum, what right and power does a parent have to go in and deal with this? [00:07:21] Speaker 02: This is not a challenging curriculum issue. [00:07:23] Speaker 02: We were viewing it as best interest of the child. [00:07:26] Speaker 02: I was placing within that the health issues at play. [00:07:29] Speaker 00: Council, let me ask it this way. [00:07:32] Speaker 00: What did the school have to do so it would not commit a substantive due process violation? [00:07:38] Speaker 02: It would not have had structured a set of policies that... And that is so vague. [00:07:45] Speaker 00: Distinguish between the written ones and the action ones. [00:07:49] Speaker 00: When you say policies, that brings in the whole universe. [00:07:52] Speaker 00: Sure. [00:07:53] Speaker 02: We cite to numerous points in the guidelines where it talks about how if a parent is to ask a teacher, the teacher is to use the... So written. [00:08:05] Speaker 02: You're talking written. [00:08:06] Speaker 02: Yeah, there's written. [00:08:07] Speaker 00: And sorry to interrupt you. [00:08:08] Speaker 00: Keep on with the answer. [00:08:09] Speaker 00: What did the school district have to do? [00:08:13] Speaker 02: Well, there's some other aspects of the policy, of the district's actions I can discuss. [00:08:16] Speaker 02: But if you're one, what it could have done is not presumed that there was any reason to mistrust or think that it could have done a better decision than the parents. [00:08:28] Speaker 02: That's what I believe. [00:08:29] Speaker 02: That's what I would submit to the court, is guiding the guidelines of the policy. [00:08:33] Speaker 00: So what if the district had a policy that said, we have this transgender issue. [00:08:39] Speaker 00: We don't want children being hurt. [00:08:42] Speaker 00: And therefore, anytime that there's an indication of a transgender issue or there's taunting or something like that, we're going to immediately get on the phone with the parents and tell them about this and offer some sort of services. [00:08:59] Speaker 00: Would that be okay? [00:09:01] Speaker 02: Well, I don't think there would be any problem with that. [00:09:04] Speaker 02: But I want to be very careful about this. [00:09:05] Speaker 02: I know this has got to be something the court's wrestling with is I'm not looking for that order. [00:09:11] Speaker 02: Again, we're looking at Troxel. [00:09:13] Speaker 02: If you look at the way Justice O'Connor is really trying to narrow the decision by not saying, hey, you can't have these visitation petitions. [00:09:23] Speaker 02: They're simply saying a visitation petition, and this comes, I think, back to full circle, a visitation petition which [00:09:32] Speaker 02: gives no deference to the parents. [00:09:34] Speaker 02: Even with judicial review was inexcusable there. [00:09:37] Speaker 02: So I would submit that policies that didn't discourage disclosure would be fine. [00:09:43] Speaker 02: I'm not looking for, and I don't think this court needs to issue an order saying, you need to disclose. [00:09:48] Speaker 02: I don't think this is a mandatory disclosure. [00:09:50] Speaker 05: Again, think of it in a- I thought that was what you want. [00:09:53] Speaker 05: No, I'm not- So under the law from the Supreme Court, a substantive due process right has to be very narrowly [00:10:01] Speaker 05: and clearly defined and I still sitting here having done all the work do not understand the specific parameters of the substantive due process right that you claim the parents had [00:10:16] Speaker 05: and was violated. [00:10:18] Speaker 05: And I'd still like help with that. [00:10:20] Speaker 02: As clear as we can be, the best interest of the child under Troxel is full deference is due to the parents. [00:10:29] Speaker 02: These policies gave the deference to school administrators. [00:10:33] Speaker 02: That's the problem. [00:10:34] Speaker 01: Well, counsel, you have the various and sundry policies, although the one that seems to get quoted the most is described as the guidelines. [00:10:46] Speaker 01: And both you and the district take passages out of the guidelines to support your positions, which I suppose leaves one in the position of having to take everything as a whole. [00:11:02] Speaker 01: But let me just give you one example. [00:11:05] Speaker 01: At one point, the guidelines say if a student initiates a conversation about needing support at school related to the student's gender identity or gender expression, [00:11:15] Speaker 01: the school counselor will encourage and discuss with the students how to inform and or include the parents in this process. [00:11:24] Speaker 01: Wouldn't it suggest that the guidelines encourage parental involvement and disclosure rather than discourage it? [00:11:31] Speaker 02: I would submit that specific provision still gives an option. [00:11:35] Speaker 02: And furthermore, read in the context of all of the district secrecy policies, the written guidelines, the frequently asked questions on the website, [00:11:44] Speaker 02: the practices we allege in the First Amendment, like when you look at everything in there, the deference is we may know better than the parents. [00:11:54] Speaker 02: I would submit to deal with a situation that the court can't be oblivious to where there might be true hostility with a parent. [00:12:03] Speaker 02: Go get a court order. [00:12:06] Speaker 02: Don't just make it on their own. [00:12:07] Speaker 02: That is the Santosky. [00:12:10] Speaker 02: decision from the Supreme Court, where you've got to have some due process when you're interfering with the parental right. [00:12:15] Speaker 02: And again, to reiterate and apologize for lack of clarity, I thought it was, the parental right is the best interest of the child to make these important decisions. [00:12:24] Speaker 05: Well, so then, what is the rule that you want? [00:12:29] Speaker 05: So you said it's not that in every instance they have to tell the parents, which frankly I thought was... A policy which discourages disclosure. [00:12:38] Speaker 02: is impermissible. [00:12:39] Speaker 02: It violates a decision of the best interest of the child because it shifts... Well, but how far is that going to go? [00:12:49] Speaker 01: A policy that discourages disclosure about what? [00:12:54] Speaker 01: What are some other topics besides the one we have here? [00:13:00] Speaker 01: Because it seems like this [00:13:03] Speaker 01: right that you're describing would cover a lot. [00:13:07] Speaker 02: Let me submit. [00:13:09] Speaker 02: I think the court could draft it specifically to these facts on the transgender issue. [00:13:15] Speaker 02: And I think one issue to give some clarity of why there is a real parade of horribles coming from an inartfully drafted or what we think is narrow position. [00:13:28] Speaker 02: A policy which discourages disclosure, the teacher, the administration, everything [00:13:33] Speaker 02: have to stay silent, a policy which just kind of leaves it up to the school so that the teachers and the administrators can use their judgment. [00:13:43] Speaker 02: If some little kid in third grade said, I'm a cat today, do we need to go call the parents? [00:13:48] Speaker 02: No. [00:13:49] Speaker 02: If they get up and say, hey, I've got some real issues, I want to change everything, to have every step of the policy go towards discouraging disclosure, [00:14:02] Speaker 02: I would submit it's a problem. [00:14:02] Speaker 02: And I direct the court's attention, if I could. [00:14:05] Speaker 02: I did not cite this, but part of the issue that we're looking at is that all of these guidelines create this sort of environment. [00:14:12] Speaker 01: And I would submit that I think- Well, but do you concede that there are some parts of the policy that actually do provide for disclosure? [00:14:22] Speaker 02: I would submit, I don't think there's a position in here [00:14:29] Speaker 02: that prohibits disclosure, you might be able to argue that the section talking about when the parent asks the teacher and the teacher is to not answer, that could be viewed as a discourage disclosure. [00:14:43] Speaker 02: But even then, it's punted to the counselor. [00:14:46] Speaker 02: But even then, returning again, the counselor can use their judgment. [00:14:51] Speaker 00: Counsel, and maybe you'll get some extra time, because this is a big case. [00:14:56] Speaker 00: But here's what I need help with. [00:14:59] Speaker 00: It seems to me they're ships passing in the night. [00:15:01] Speaker 00: There are these written policies, and what they contemplate is not what happened here, but instead the child coming to the guidance counselor or teacher and saying, I'm having these issues. [00:15:12] Speaker 00: And therefore, you go down that track, and you go through those policies. [00:15:15] Speaker 00: And if that were the case, then we'd be deciding whether these policies infringe on the parental right. [00:15:22] Speaker 00: But what we have here instead is the school people [00:15:28] Speaker 00: Teacher Wright, Riot Chambers, Delahunt, the principal, doing something entirely different, which is out there basically recruiting. [00:15:38] Speaker 00: I'll use that word. [00:15:39] Speaker 00: They're recruiting. [00:15:40] Speaker 00: And they have this meeting and call it art. [00:15:42] Speaker 00: And you just say, my heavens, what in the world? [00:15:46] Speaker 00: But that doesn't mean that those other policies for a voluntary situation are suddenly transported over to this situation and make policies. [00:15:56] Speaker 00: In other words, [00:15:58] Speaker 00: Why aren't they rogue employees? [00:16:00] Speaker 00: There's nothing in those written policies that says get up a club that you call the art club and instead bring them in and tell them they're going to commit suicide unless they're acknowledged they're transgender if they're confused about their body or something like that. [00:16:15] Speaker 00: I get that. [00:16:16] Speaker 00: I get that that's a huge issue. [00:16:19] Speaker 00: But where is the district policy that says [00:16:25] Speaker 00: to the teacher, to the guidance counselor, to the substitute teacher, go ahead and do this GSA alliance and get your kids huddled and then tell them these various things which parents have a complete right to be objecting to and we'll call it a school policy. [00:16:44] Speaker 00: That's my problem. [00:16:45] Speaker 00: They're two sides of a canyon. [00:16:47] Speaker 02: So let me put it this way. [00:16:50] Speaker 02: What was going on, what we've alleged in the First Amendment complaint, [00:16:54] Speaker 02: were that this was not instruction as much as it was guidance for children who may want to be transitioning. [00:17:02] Speaker 02: We don't go so far as to say recruiting, but that was the court's word there. [00:17:07] Speaker 02: If that's what was going on, working with the individual children on their own journey, they would be acting in harmony with all of the policies, the guidelines, the frequently asked questions, et cetera, which all foster. [00:17:20] Speaker 02: You can trust us. [00:17:22] Speaker 02: more than your parents. [00:17:23] Speaker 02: That's all coming from that perspective. [00:17:26] Speaker 00: So when it comes... But we already know that. [00:17:28] Speaker 00: We don't need those other policies for that. [00:17:30] Speaker 00: We know that that's what the teachers told them. [00:17:32] Speaker 02: Well, but what I'm driving at is that the act, to get one to the manel angle, that the causal act here is what was going on in those clubs. [00:17:43] Speaker 02: It's in harmony with the policies which are in violation of the best interest of the child angle. [00:17:49] Speaker 02: And I would cite, that's been our argument going forward. [00:17:52] Speaker 02: I did not cite this in the brief, so I apologize for that. [00:17:55] Speaker 02: But I would cite, direct the court's attention to the Croson case, 983, F3, 1166, where this court talks about the Monell standard and the policy, and I'm paraphrasing here, but policies may be [00:18:11] Speaker 02: unconstitutional precisely because they fail to ensure that a single officer is in a position to prevent the constitutional violation. [00:18:18] Speaker 02: Where the sum of officer's actions result in a violation, a municipality may be liable. [00:18:24] Speaker 02: And I would just direct the court's attention to the factual pattern here. [00:18:27] Speaker 02: We have three club meetings in a row. [00:18:30] Speaker 02: And the third club meeting takes place after the principal has been put on notice, and it's still going forward. [00:18:37] Speaker 02: So we have a policy which says, [00:18:39] Speaker 02: On the individual child's journey, which I would submit is not related to any core issue of the school's district, it's not helping a free, a discrimination-free environment, it's not dealing with when and how to address transgenderism, this is about the child, that individual child's journey, the policies say [00:18:57] Speaker 02: We're going to help the child, even if it means keeping the parents in the dark. [00:19:00] Speaker 00: OK, but you haven't made a policymaker argument. [00:19:03] Speaker 00: You haven't said the principal sets policy for the district. [00:19:06] Speaker 02: No, but I would submit that the principal, everybody's acting downstream of those policies adopted by the district. [00:19:11] Speaker 00: But you haven't made that argument, or that claim, that the principal's a policymaker. [00:19:16] Speaker 02: No, I would submit that it's part of the operations of the district. [00:19:23] Speaker 00: OK, so if there were full disclosure, I'm just trying to get my hands around it. [00:19:27] Speaker 00: Some of the relief that you're seeking is that the public school pay for private schooling, right, which is going to be really expensive. [00:19:33] Speaker 02: We had. [00:19:34] Speaker 00: And so my question is, what can the school do that will satisfy you, and would this do it? [00:19:41] Speaker 00: There's transgender out there. [00:19:42] Speaker 00: There's sex education out there. [00:19:44] Speaker 00: There are various things that are out there. [00:19:47] Speaker 00: If the school said, we all recognize the community that these issues are going to come up. [00:19:52] Speaker 00: And so any time it comes up, our first call is to the parent, [00:19:57] Speaker 00: unless we get a judicial order or something saying we don't have to talk to the parent, and the parent can opt out. [00:20:04] Speaker 00: Are you good? [00:20:05] Speaker 02: Oh, that would be fine, but we don't have to have that. [00:20:07] Speaker 02: I don't think this court has to order that. [00:20:09] Speaker 00: Oh, I'm not saying we're going to order it. [00:20:11] Speaker 00: I'm just trying to get my hands around what your argument is. [00:20:13] Speaker 00: Would that be sufficient that you would say no longer? [00:20:17] Speaker 02: We would be sufficient if they just got rid of policies that overall throughout discourage disclosure. [00:20:24] Speaker 00: What if there had not been a guidelines, but instead the teachers had just done this meeting on their own? [00:20:30] Speaker 00: Then would you contend that there's a policy? [00:20:33] Speaker 02: It would be much more challenging. [00:20:34] Speaker 00: So no? [00:20:36] Speaker 02: I don't think, I think, I, I, we do, I, I, yes, you need the whole entirety. [00:20:41] Speaker 02: You need the guidelines FAQ. [00:20:44] Speaker 05: I know you're out of time, but I asked. [00:20:48] Speaker 02: It's the court's pleasure, I think, on this. [00:20:50] Speaker 05: So as I read your complaint, you're claiming damages because of the failure to notify the parents or the presumption that the district knows better and not to notify. [00:21:04] Speaker 05: And I have a problem with causation with respect to CL. [00:21:10] Speaker 05: comes home from the meeting and immediately discloses to her parents, which is probably a testament to the parent-child relationship, which to me undermines your argument that somehow they're injured by this policy of not to tell the parents. [00:21:29] Speaker 05: Because whether they told her or not that she could keep it to herself, she went home and immediately involved her parents in this issue. [00:21:39] Speaker 02: Policies assume our discouraged disclosure we would submit out of a presumption that there may be some hostility. [00:21:48] Speaker 02: And our allegations and our complaint, it is more than just an advisement to the students to not tell the parents. [00:21:55] Speaker 02: It was you may not be able to trust them. [00:21:59] Speaker 02: And that did, as we allege in our complaint, poison the relationship going forward. [00:22:04] Speaker 02: They may not be million dollar damages, but there will be damages there. [00:22:09] Speaker 02: But it's not just that it's not, I urge the court to take a look at the first minute complaint regarding damages and what was said. [00:22:16] Speaker 02: It wasn't just don't tell your parents. [00:22:19] Speaker 02: She may not be able to trust them. [00:22:20] Speaker 02: And it's our allegations that that ruined the relationships with both children. [00:22:27] Speaker 01: Well, I think the question [00:22:29] Speaker 01: though that was just posed to you is how did the policy cause that to happen? [00:22:34] Speaker 01: What if you alleged that the policy did that? [00:22:38] Speaker 02: Because the policies are establishing a norm within the school district that this individual child's gender issues, transition issues are ones that [00:22:58] Speaker 02: you may not want to be discussing with the parents. [00:23:01] Speaker 02: So the statements made at those GSA clubs are in total harmony with those overall policies. [00:23:09] Speaker 05: But obviously CL trusted her parents enough to go home and immediately disclose and involve them in the discussion. [00:23:19] Speaker 02: But there were several months worth of very strained relationships with their parents. [00:23:22] Speaker 02: And we would submit that having been advised you may not be able to trust your parent, that didn't help. [00:23:27] Speaker 05: But there's nothing in the guidelines saying about you can't trust your parents. [00:23:31] Speaker 05: The guidelines are all about the student having control over who gets to know and when they get to know. [00:23:39] Speaker 02: I would submit that the guidelines don't trust the parents, [00:23:45] Speaker 02: Import of the guidelines discussing trust of the parents comes from why would they not want to disclose? [00:23:53] Speaker 02: It has nothing to do with the environment free from discrimination or a safe learning environment. [00:23:59] Speaker 02: How does it help either of those goals to not tell the parents? [00:24:03] Speaker 02: It's coming from a mistrust. [00:24:06] Speaker 02: It's coming from what Trumps will shot down with judicial review, not ex parte school activity, judicial review of you don't presume better. [00:24:15] Speaker 01: Counsel, could we maybe pull back and think a little bit about how this case would be situated in constitutional law generally, substantive due process maybe a little more particular. [00:24:32] Speaker 01: And that is, it still seems that the right being claimed here is a right to get information that the parents didn't get in this circumstance. [00:24:46] Speaker 01: And I understand that. [00:24:49] Speaker 01: But can you point to any case law, whether it's substantive due process or some other area where the Supreme Court or some other court has recognized a right to obtain information as a matter of constitutional right? [00:25:08] Speaker 02: The only thing I can point to is very little. [00:25:13] Speaker 02: I think there is a developing body of law that's generally going towards the idea that prohibiting disclosure is violative. [00:25:21] Speaker 02: And again, I've made the argument such as that may exist in this case. [00:25:25] Speaker 02: The only other point I could raise is what I found in the supplemental authority last week. [00:25:30] Speaker 02: This is a decision out of Kentucky. [00:25:35] Speaker 05: It's a First Amendment case, though, right? [00:25:36] Speaker 02: Yes, but it did address 14th Amendment parental rights. [00:25:40] Speaker 02: If you will indulge, it's a little convoluted. [00:25:44] Speaker 02: There was a June injunction that was ordered, and the court said these rules will discourage disclosure. [00:25:53] Speaker 02: This violates the 14th Amendment. [00:25:55] Speaker 02: It's a district court in Kentucky. [00:25:57] Speaker 02: This is the 10th Circuit. [00:25:59] Speaker 02: I understand. [00:26:00] Speaker 02: I cite it because it's about the only thing I could find. [00:26:03] Speaker 02: And I will reference for whatever it is worth that that injunction decision did get before the Supreme Court in some limited capacity. [00:26:11] Speaker 02: It was just a stay, but it's had something. [00:26:13] Speaker 02: And then furthermore, the reason we filed it last week is it did survive or the court adopting that argument [00:26:21] Speaker 02: from the June, granted summary judgment. [00:26:24] Speaker 02: So it was a little more thoughtful, a little more time involved with that. [00:26:27] Speaker 02: That's all I can give you as far as, hey, has anybody else been down this path? [00:26:31] Speaker 01: Well, okay, but let me just, can I just maybe try to restate what I think I'm hearing, which is it isn't so much a matter of claiming a right to obtain information. [00:26:44] Speaker 01: It's more a matter of the school discouraging [00:26:50] Speaker 01: the provision of information. [00:26:51] Speaker 01: Correct. [00:26:52] Speaker 01: Is that what you're saying? [00:26:53] Speaker 02: Yes. [00:26:54] Speaker 02: For better or for worse, that is very much what we are asking about. [00:26:59] Speaker 02: And that is what the teachers were acting in conformity there with. [00:27:04] Speaker 02: And that's what poisoned the relationships between the children and the parents. [00:27:08] Speaker 02: That's our harm. [00:27:10] Speaker 02: To whatever degree it may be there. [00:27:15] Speaker 02: I appreciate the court's indulgence. [00:27:17] Speaker 02: Maybe if I could have like 30 seconds if needed for a rebuttal. [00:27:20] Speaker 01: Thank you. [00:27:21] Speaker 01: Thank you, counsel. [00:27:50] Speaker 03: Good morning, and may it please the court. [00:27:52] Speaker 03: Jonathan Farrow on behalf of Poudre School District. [00:27:55] Speaker 03: This case seems to be, notwithstanding some of the comments we just heard, really about two families' desire to dictate public education of their children. [00:28:04] Speaker 03: And I still believe, based on the way this case has been presented, that to them, a public school really has to be like a smorgasbord. [00:28:12] Speaker 00: So nothing wrong here. [00:28:14] Speaker 00: What's that? [00:28:15] Speaker 00: Nothing bad happened here. [00:28:16] Speaker 00: You do the same? [00:28:18] Speaker 00: This is all good? [00:28:20] Speaker 03: I'll address that. [00:28:21] Speaker 03: I mean, I have to take the allegations as they're presented. [00:28:25] Speaker 03: But I don't think that even if you take everything they say is true, that there's a constitutional violation. [00:28:32] Speaker 03: To them, a public school should be like a smorgasbord where they can pick and choose what topics their children will be exposed to. [00:28:39] Speaker 05: You know, that may have been the position in the first complaint. [00:28:42] Speaker 05: But in the amended complaint, there's been a sea change, as I compare them. [00:28:49] Speaker 05: asserting a right to control curriculum under my reading of the arguments in the brief and the amended complaint. [00:28:59] Speaker 03: Well, I think I've heard it both ways even today. [00:29:01] Speaker 03: Even today I've heard it both ways. [00:29:03] Speaker 03: They're saying I heard discourage. [00:29:05] Speaker 03: The issues, the policies, they say it discourages disclosure and then yet I heard a comment saying that, well, the moving force of the constitutional violation was the actions of the employees. [00:29:16] Speaker 03: And as Judge Phillips pointed out, there's two sides of the canyon here between what they say the employees did versus what the guidelines say. [00:29:24] Speaker 03: And I think they're trying to ride the line of both. [00:29:26] Speaker 03: They want them both and they need them both. [00:29:28] Speaker 05: Well, let's focus on the right of a parent to have information [00:29:35] Speaker 05: about a child who is struggling with potential gender dysmorphia. [00:29:42] Speaker 03: Right. [00:29:42] Speaker 03: And then go back to my analogy, because parents don't attend school with their kids, generally, right? [00:29:48] Speaker 03: And so if you think about the smorters, for example, you have to know what's on the menu [00:29:53] Speaker 03: in order to say, I want to opt my kid out of a certain thing. [00:29:57] Speaker 03: I have to know that it's on the menu, right? [00:30:00] Speaker 03: OK, what is the underlying right at stake to be able to say, I have to know what's on the menu? [00:30:05] Speaker 05: Well, I don't think they're saying I have to know what's on the menu. [00:30:08] Speaker 05: They're not saying you can't have this club. [00:30:12] Speaker 05: They're saying, if my child indicates that she is struggling with her gender, then [00:30:23] Speaker 05: your policies should assume that I will make decisions in her best interest and give me the information I need to make those decisions. [00:30:35] Speaker 05: I think that's the argument. [00:30:38] Speaker 03: I'm not sure, but if that is the argument, I mean, we're still talking about they say that there's information that a school constitutionally must provide them, whether it's a class, whether it's a discussion about sexuality, whether it's a club, [00:30:51] Speaker 03: whether it's something that a student expressed that they say a teacher then must convey that to the parents. [00:30:57] Speaker 03: It's the same concept. [00:30:58] Speaker 03: What's the underlying constitutional right at stake? [00:31:02] Speaker 03: And they have clear, I mean, there are a lot of things that it maybe could be, or they've said, as you said, Judge Matheson, there are multiple formulations in the briefing. [00:31:11] Speaker 03: What they've doubled down to on today, and I think they did in the reply brief, too, is they say, well, our case is based on Troxel. [00:31:17] Speaker 03: And they say, we're not expanding. [00:31:19] Speaker 03: We're not seeking an expansion. [00:31:20] Speaker 03: OK, well, then let's take them at that word. [00:31:23] Speaker 01: Well, counsel, maybe we could split this into two parts. [00:31:28] Speaker 01: So the parents are concerned that they've been kept in the dark about certain personal issues regarding their children. [00:31:39] Speaker 01: Now, do you agree that that's a legitimate concern? [00:31:44] Speaker 01: I'm not asking if it's a constitutional violation. [00:31:46] Speaker 01: I'm just asking if it's a legitimate concern. [00:31:47] Speaker 03: A legitimate parental concern? [00:31:49] Speaker 01: Sure. [00:31:49] Speaker 03: I don't disagree with that. [00:31:50] Speaker 01: All right. [00:31:51] Speaker 01: Then why isn't it? [00:31:52] Speaker 03: The guidelines recognize that. [00:31:54] Speaker 01: OK. [00:31:54] Speaker 01: Why isn't it a constitutional concern? [00:31:59] Speaker 03: Right. [00:31:59] Speaker 03: Because where is the authority that says that a parent has a substantive due process right to know everything that happens in school about their child? [00:32:10] Speaker 03: Every little piece of information. [00:32:13] Speaker 01: I don't think that's what they've done. [00:32:14] Speaker 03: Well, narrow it then to sexuality. [00:32:17] Speaker 01: Nether it to gender expression. [00:32:18] Speaker 01: We're not in the business of making arguments for either one of you. [00:32:23] Speaker 01: But the question is, how do you define the right [00:32:29] Speaker 01: that they're arguing, and how do you think that's broader than what the right really is? [00:32:34] Speaker 01: Isn't that really what this is about? [00:32:36] Speaker 03: Yeah, and as I've said, I've tried to tell you what I think it is, and I think you all are saying, well, maybe it's something else. [00:32:41] Speaker 03: I mean, I think they've said it's multiple things, OK? [00:32:45] Speaker 03: So I'm trying to take them as a bit of a piece here. [00:32:48] Speaker 03: So I think what they're saying is that, on the one hand, they think they need, they say they have the right to opt out of public education. [00:32:56] Speaker 03: Agreed. [00:32:57] Speaker 03: Pierce Meyer and Pierce, right? [00:33:00] Speaker 03: So the state can't punish them for saying, I want to homeschool my kids or I want to have a parochial education. [00:33:05] Speaker 03: Okay, fine. [00:33:06] Speaker 03: But, and that's not the claim, right? [00:33:08] Speaker 03: That's not the issue. [00:33:09] Speaker 03: That's not the harm. [00:33:10] Speaker 03: So I think what they've said at various times in this case is that they need information in order to exercise that choice, right? [00:33:19] Speaker 03: And you asked [00:33:20] Speaker 03: asked at the very end, again, the argument today is not quite, that doesn't seem to be the horse that's been chosen, but you ask Judge Matheson at the very end of the argument, say, show me the case, right, and I'll tell you the case they didn't mention, but they put it in the reply, which goes on this notice concept was Wiley, and that's a District of Wyoming case, and I think it's telling that they chose not to push that today, but it is, of course, factually distinguishable, as we point out, and it seems like they've abandoned that theory. [00:33:46] Speaker 03: That isn't their constitutional theory, but [00:33:48] Speaker 03: Hey, it's been out there on the table and I think we should address it. [00:33:51] Speaker 05: Well, let's look at Glucksburg. [00:33:53] Speaker 03: At which one? [00:33:54] Speaker 05: Glucksburg. [00:33:55] Speaker 03: Glucksburg. [00:33:55] Speaker 05: Okay. [00:33:56] Speaker 05: And that is, you know, sort of setting out the categories of substantive due process that exist in the world, U.S. [00:34:05] Speaker 05: Supreme Court, and it's one of those rights as to direct the education and upbringing of one's children. [00:34:15] Speaker 05: So that's the core [00:34:17] Speaker 05: right we're talking about here in the substantive due process area. [00:34:21] Speaker 05: And let's assume that their argument is I can't exercise that right without important information about my child. [00:34:34] Speaker 05: And their position is your policies discourage the school district and the teachers from communicating to them [00:34:45] Speaker 05: very important information that they need to direct the education and upbringing of their children. [00:34:55] Speaker 05: That's my best guess of the substantive due process framework here. [00:35:01] Speaker 05: Respond to that. [00:35:03] Speaker 03: Sure. [00:35:04] Speaker 03: Again, I'm not sure that that's what it is, but yeah, I'll be happy to respond to that because again, I think that first let's go back to what we have in our circuit. [00:35:14] Speaker 03: And that's the Swanson case. [00:35:16] Speaker 03: And I think that's the closest decision we have in this area. [00:35:19] Speaker 03: I think that that case, granted it doesn't go that far, it was a case about homeschooling. [00:35:24] Speaker 03: And they wanted to do selective homeschooling, right? [00:35:26] Speaker 03: So they wanted to, it's my smorgasbord. [00:35:28] Speaker 03: They wanted to, I want this, but I don't want this. [00:35:31] Speaker 03: And again, but take that a little further. [00:35:34] Speaker 05: But that has nothing to do with what they're arguing today. [00:35:35] Speaker 05: I think it does. [00:35:36] Speaker 03: Because you can't pick and choose without knowledge, right? [00:35:42] Speaker 03: Take this to its conclusion. [00:35:44] Speaker 03: The whole point of their argument is we have to know so that we can say what we want and what we don't want. [00:35:49] Speaker 05: If a child had a seizure in the classroom, do you think there's any obligation to notify the parents? [00:35:57] Speaker 03: I can think of probably numerous statutory obligations. [00:36:01] Speaker 03: Is that a substantive due process claim? [00:36:03] Speaker 03: I wouldn't concede that today. [00:36:05] Speaker 03: I don't believe that that's ever been recognized. [00:36:07] Speaker 03: But you're getting closer to medical, which they've disclaimed today, saying no, that's not what we're seeing. [00:36:12] Speaker 05: No, I think they tried to argue it today, but I don't think it's in the brief. [00:36:15] Speaker 03: It definitely is not in the brief. [00:36:17] Speaker 05: So there are some instances where you would acknowledge that the school has [00:36:24] Speaker 05: an obligation to notify the parents about something that is affecting their children? [00:36:30] Speaker 03: I struggle to think of a constitutional obligation to share a specific granule of information. [00:36:38] Speaker 05: I'm not at the moment asking you about constitutional law. [00:36:41] Speaker 03: Other issues with statutory law and administrative rules, yeah, I think there probably are numerous things that have to be conveyed, right? [00:36:51] Speaker 03: But again, if you take that and say, why, constitutionally, what is it that parents get to do? [00:36:57] Speaker 03: Our circuit has rejected the notion that it is a pick and choose type of thing. [00:37:02] Speaker 03: And so if that's sort of the extending piece of where you get the notice requirement, I mean, it just doesn't, logically, I think, and analytically, it doesn't make sense. [00:37:13] Speaker 03: So where else does it come from? [00:37:14] Speaker 03: And I think that's why they've said it's troxel, it's troxel. [00:37:18] Speaker 03: And Troxel's a parent custody case, right? [00:37:21] Speaker 03: So it's not even sourced in the place that you pointed to, Judge McHugh. [00:37:26] Speaker 03: I mean, it's sourced and custodial. [00:37:29] Speaker 03: Right, the right of a parent to be the custodian of their child and a judge is taking away visitation rights. [00:37:37] Speaker 03: And so it makes perfect sense that there's some heightened due process interest here. [00:37:41] Speaker 03: We have to have procedures before you can, a declaration of judicial offense. [00:37:45] Speaker 05: Well, let me ask you this. [00:37:46] Speaker 05: If the parent asked for information, would it be okay for the school district to give them false information? [00:37:54] Speaker 05: If the parent went to the school district and said, hey, I want to know, [00:37:58] Speaker 05: Is my child attending the transgender club? [00:38:02] Speaker 05: Would it be OK to say no when the truthful answer is yes? [00:38:06] Speaker 03: I don't know. [00:38:07] Speaker 03: I haven't really grappled with that one. [00:38:09] Speaker 03: I think that's the Wiley case. [00:38:10] Speaker 03: And the judge in the Wiley case said, I would have a problem with that. [00:38:14] Speaker 03: It is in this case. [00:38:15] Speaker 01: That isn't what's alleged. [00:38:16] Speaker 03: What do the district policies say? [00:38:18] Speaker 01: About that? [00:38:19] Speaker 03: They certainly don't say lie to parents, as I think the panel pointed out. [00:38:23] Speaker 01: But what do they say? [00:38:24] Speaker 01: What do they say? [00:38:25] Speaker 01: Do they say the school should answer the question honestly? [00:38:31] Speaker 03: First of all, they say healthy communication between educators and parents, which you pointed out, and then they say there's several statements that address this. [00:38:40] Speaker 05: Well, they say you should defer to, I think, the social worker, right? [00:38:47] Speaker 05: If the parent asks. [00:38:52] Speaker 03: Yeah. [00:38:54] Speaker 05: But they also have a policy that says, [00:38:56] Speaker 05: If you're using a different name for the child and different pronouns for the child at school, it's okay to use that at school, but when you talk to the parents, [00:39:08] Speaker 05: use the pronouns that the parents are aware of and the name the parents are aware of. [00:39:13] Speaker 03: That's what it does say. [00:39:14] Speaker 05: It does say. [00:39:15] Speaker 03: Yeah. [00:39:15] Speaker 05: But isn't that essentially giving false information? [00:39:19] Speaker 03: No. [00:39:19] Speaker 03: I don't think so. [00:39:20] Speaker 03: Why is that? [00:39:21] Speaker 03: I mean, because again, and I agree with what Judge Matheson said. [00:39:25] Speaker 03: It's like, hey, everybody cites the part that they like the best. [00:39:28] Speaker 03: And that's what we do in cases. [00:39:29] Speaker 03: But if you take it as the totality of the circumstances, I think that's an oversimplification with respect because [00:39:37] Speaker 03: What it's trying to do is these guidelines are really trying to get to the crux of what about when there's an instance where, you know, the student isn't comfortable with that being shared with their parents. [00:39:49] Speaker 03: And that's what the guidance counselor is supposed to resolve. [00:39:52] Speaker 03: And to directly answer your question, the guidelines say staff members should refer them to the school counselor. [00:39:59] Speaker 03: Okay, so that's the professional here in our school district that [00:40:02] Speaker 03: is the one that should handle this. [00:40:03] Speaker 03: And it says, who can address the question and concerns that the parent guardian may have? [00:40:07] Speaker 03: So the guidelines fully contemplate that there is an exchange of information between counselors and parent and guardian. [00:40:14] Speaker 03: And then it says, they should use their professional judgment term best, how best to follow up with the student, and then the parent guardian. [00:40:20] Speaker 03: So in practice, the way that this happens. [00:40:22] Speaker 05: And here's how I understand the argument. [00:40:25] Speaker 05: It is that it shouldn't be your decision [00:40:30] Speaker 05: It should be ours because there is a presumption that a fit parent will make decisions in the best interest of the child. [00:40:38] Speaker 05: That's how I understand the argument. [00:40:40] Speaker 05: What's your response to that? [00:40:42] Speaker 03: I think that probably is the argument. [00:40:44] Speaker 03: It seems to be what I definitely heard more of today. [00:40:46] Speaker 03: What's the response to that? [00:40:47] Speaker 03: Well, I can understand why a parent may say, that's my call. [00:40:53] Speaker 03: But where's the legal authority that says that that's a constitutional right, and they haven't identified it? [00:40:58] Speaker 01: Well, counsel, that opens up one thing I wanted to run by you, which is this. [00:41:05] Speaker 01: Judge McHugh cited Glucksburg identified the parental right that Glucksburg articulates, correct? [00:41:14] Speaker 01: The parents have a fundamental right to control education and upbringing of the child. [00:41:25] Speaker 01: That is an established parental right, correct? [00:41:28] Speaker 03: Agreed. [00:41:29] Speaker 01: And again, Meyer-Pierce... That's all we need. [00:41:32] Speaker 01: That's an established substantive process. [00:41:35] Speaker 01: Direct them to home school or private school. [00:41:39] Speaker 01: One way to look at this, it seems to me, is to say, OK, now that is an established right. [00:41:45] Speaker 01: And maybe the argument that you and opposing counsel are having really isn't about what the right is. [00:41:53] Speaker 01: That's the established right. [00:41:55] Speaker 01: It's more an argument as to whether it's been [00:41:57] Speaker 01: violated by the school, by discouraging the provision of this information. [00:42:05] Speaker 01: It isn't so much a claim of right to notice. [00:42:08] Speaker 01: It isn't so much a claim of rights information. [00:42:10] Speaker 01: It's more a question of the school, by adopting and implementing these policies, is infringing a right that has been long established. [00:42:21] Speaker 01: Now, why isn't that the way to look at this? [00:42:24] Speaker 03: My time's about to expire, but I would like to answer your question. [00:42:29] Speaker 03: Yeah, I think, you know, look, these cases are interesting in that regard because you can start your analysis from the, well, what's the constitutional right? [00:42:37] Speaker 03: Or you can start your analysis of what was alleged to have happened here, right? [00:42:41] Speaker 03: And so we can look at it from either direction. [00:42:43] Speaker 03: And I completely agree with you that you ought to look at both directions in this case to evaluate and see what the district court's analysis was. [00:42:53] Speaker 03: And so what is it that we have here? [00:42:56] Speaker 03: So we've talked a bit about the guidelines, right? [00:42:59] Speaker 03: We've talked a bit about that. [00:43:00] Speaker 03: And I think it's, again, I want to make this point very telling that they said today, discourage, discourage, discourage. [00:43:05] Speaker 03: That was the language used. [00:43:06] Speaker 03: But go back to what the district court evaluated in the complaint. [00:43:10] Speaker 03: The language was a lot stronger. [00:43:11] Speaker 03: Deliberately conceals. [00:43:13] Speaker 03: That's in paragraph 9, page 202 of the record. [00:43:18] Speaker 03: Fails to notify. [00:43:19] Speaker 03: Instructs children to conceal information. [00:43:24] Speaker 03: Okay, but again, the guidelines don't do that. [00:43:27] Speaker 03: They don't go that far. [00:43:28] Speaker 03: And so I think prudently, they've said today, we say it's discouraging. [00:43:33] Speaker 03: And I mean, that's a characterization. [00:43:35] Speaker 03: And then we start talking about inferences and whatnot. [00:43:37] Speaker 01: And I disagree with that. [00:43:38] Speaker 01: I'm going to jump in. [00:43:39] Speaker 01: Isn't your answer to the question, shouldn't your answer to the question, from the district's perspective, be that even if there is this established right, we haven't infringed it? [00:43:50] Speaker 01: Sure. [00:43:50] Speaker 01: All right. [00:43:51] Speaker 01: Yeah. [00:43:52] Speaker 01: The guidelines don't infringe it, nor do the actions of the employees. [00:43:56] Speaker 01: And the district court, [00:43:57] Speaker 01: order that we're reviewing really spends most of its time on the Monell elements, correct? [00:44:04] Speaker 01: Yes. [00:44:05] Speaker 01: Why aren't we talking about that? [00:44:07] Speaker 03: Well, I'll be glad to talk about it. [00:44:08] Speaker 03: I do want to say there are two orders. [00:44:10] Speaker 01: Let me ask you a question about that. [00:44:13] Speaker 01: So we have Monell, and we have the plaintiff needing to show a policy or custom and the causation of an underlying violation and deliberate indifference. [00:44:25] Speaker 01: So far, so good? [00:44:28] Speaker 01: Okay. [00:44:30] Speaker 01: So assuming the district has an official policy, whatever the totality of it is, you can take this part and that part, but there is a policy. [00:44:41] Speaker 01: I mean, we have it. [00:44:42] Speaker 01: It's written, right? [00:44:43] Speaker 01: That's a policy. [00:44:44] Speaker 03: We have guidelines. [00:44:48] Speaker 03: How is that not a policy? [00:44:49] Speaker 03: I mean, I work for schools, and the school board policy is something that's been promulgated by the board, a formal policy. [00:44:55] Speaker 05: A Monell policy is something different. [00:44:57] Speaker 03: Well, again, they don't say who adopted the policy. [00:45:00] Speaker 01: Are they a final policy maker? [00:45:02] Speaker 03: They very well may be, but it's their own lives. [00:45:04] Speaker 01: Is that your argument? [00:45:04] Speaker 01: I mean, if that's your argument, if there's no policy, they don't have them on their own. [00:45:08] Speaker 03: It's one of many arguments. [00:45:10] Speaker 01: Well, have you made that argument, that there's no policy? [00:45:14] Speaker 01: I thought we did. [00:45:15] Speaker 01: I thought we have made that argument. [00:45:16] Speaker 01: Well, I think you've made an argument about what the policy says. [00:45:20] Speaker 01: It's not our primary argument. [00:45:21] Speaker 01: But are you saying now there's no policy? [00:45:23] Speaker 03: I don't know. [00:45:24] Speaker 03: I'm saying that I don't think that they've pled that the guidelines themselves are a formal district policy by a policymaker, that that's the formal policy or statement. [00:45:37] Speaker 03: I mean, we have allegations and you can see it says adopted and revised 2023. [00:45:43] Speaker 03: What was the formal policy in effect at the time of these [00:45:48] Speaker 03: allegations, it just doesn't say. [00:45:50] Speaker 03: They seem to be more focusing on informal customer policy and fine, we can, I think that's their primary vehicle and that's where our argument is primarily focused. [00:45:59] Speaker 01: Well aren't they, I mean, aren't they saying that that was 2023 but on information and belief that's what the policy was in 2021? [00:46:08] Speaker 03: That's what they said, yeah, up on information and belief. [00:46:10] Speaker 05: Well isn't that something to get you past the motion to dismiss stage and during summer when you [00:46:17] Speaker 05: get into discovery, you can find out what policy was, I mean isn't that how it works? [00:46:23] Speaker 03: I think it's very thin and that's our point and look and then okay so even if you disagree then you have to parse the guidelines and then what is the policy established by that document. [00:46:34] Speaker 01: So that's element number one. [00:46:35] Speaker 01: Assuming that there is a policy and I know you're not conceding that about disclosure, why did [00:46:45] Speaker 01: Why didn't that policy cause the alleged violations here? [00:46:49] Speaker 03: OK. [00:46:50] Speaker 01: We're on causation now. [00:46:52] Speaker 03: Sure. [00:46:52] Speaker 03: I follow you. [00:46:53] Speaker 03: So why did the guidelines not cause it? [00:46:58] Speaker 03: Because the guidelines, as Judge Phillips said it better than I can say it, the guidelines didn't dictate the result that they say happened at the GSA meetings. [00:47:10] Speaker 00: You're saying that they're rogue employees. [00:47:13] Speaker 03: Yes, and I'm also saying that's their alleged moving force. [00:47:17] Speaker 00: And you say that in your brief on page 27. [00:47:20] Speaker 00: You describe it as it leaves their claim reliant on alleged rogue employee acts, which I have no idea what that means. [00:47:27] Speaker 00: But I thought it meant that you were saying that they were rogue employees so they can't be setting or interpreting policy. [00:47:33] Speaker 00: Is that correct? [00:47:34] Speaker 03: Yeah. [00:47:35] Speaker 00: OK. [00:47:36] Speaker 00: Well, they do allege in the complaint that the teacher who [00:47:41] Speaker 00: invited the students to this GSA after school art club that she's still employed. [00:47:49] Speaker 00: And the principal came by the home, he wanted to meet at the home of the Lees and said there wasn't basically any problem with what Ms. [00:48:02] Speaker 00: Ryop had done with the children. [00:48:04] Speaker 00: Why isn't that enough to say [00:48:06] Speaker 00: That what you are now calling rogue employees were simply implementing the policy as the whole school understood it to be well again They use the phrase agency, and so I'm just saying You're going off on a on something else and I ask a question for a reason [00:48:27] Speaker 03: I'll try and answer it again. [00:48:28] Speaker 00: And if the answer is I don't know, I'll accept that. [00:48:30] Speaker 00: But what's the answer? [00:48:31] Speaker 03: No, I think I can answer it. [00:48:32] Speaker 03: And I'd like to try. [00:48:33] Speaker 03: So Benedict was the school principal, right? [00:48:37] Speaker 03: In the meeting you're talking about, they say happened four days before the last of the three meetings that they alleged. [00:48:43] Speaker 03: So within a four-day time span, they've never said it this way. [00:48:47] Speaker 03: And maybe you're saying that Benedict is the ratifier? [00:48:51] Speaker 00: I'm saying that we have a complaint. [00:48:53] Speaker 00: And we have a 12b6, and we're giving inferences. [00:48:58] Speaker 00: And they allege that RIAP, who had done all of these things and all of these statements at the art club, that that was the school's policy. [00:49:08] Speaker 00: It was hand in hand with the guidelines and the other documents they rely on for policy. [00:49:15] Speaker 00: It's all one big package. [00:49:16] Speaker 00: It's one thing. [00:49:17] Speaker 00: that they're not rogue employees. [00:49:20] Speaker 00: And if they were rogue employees, something bad would have happened for doing this. [00:49:25] Speaker 00: But the complaint, if we give them the inferences, [00:49:28] Speaker 00: Nothing bad happened. [00:49:29] Speaker 00: Okay. [00:49:29] Speaker 03: I think, sorry, I think I follow what you're saying. [00:49:31] Speaker 03: I guess my take on that in response is that if you're going to fault, if you're going to hold the employer as a governmental entity liable, right, and you're doing it because of employee, things that employees did, you got a couple theories. [00:49:46] Speaker 03: One of them is that those employees acted pursuant to an informal customer policy or formal policy, right? [00:49:52] Speaker 03: Okay. [00:49:53] Speaker 03: I think we've established our position is the guideline. [00:49:55] Speaker 03: It can't be the guidelines. [00:49:57] Speaker 05: Why? [00:49:58] Speaker 03: Because the guidelines don't say all the things that they say that REAP did in the meeting. [00:50:07] Speaker 00: It's a basket. [00:50:08] Speaker 00: So if you examine them individually, maybe, but we're looking at a basket. [00:50:14] Speaker 00: And if part of that basket for interpreting what the guidelines and the written documents say [00:50:20] Speaker 00: is go ahead and do your art club after school and tell the students this, then my question is, why isn't that the policy? [00:50:28] Speaker 00: We don't have any sort of indication from the complaint or the arguments that the teacher, the guidance counselor, the substitute teacher did anything wrong. [00:50:39] Speaker 00: And you started your argument kind of dismissive of the claims and that there was something wrong here. [00:50:46] Speaker 00: which just reinforces to me that you think everything, or the district thinks, that the teachers and the counselors all did well, according to the written policy. [00:50:56] Speaker 03: No, I mean, I just, I have to take the allegations as presented at this stage. [00:51:00] Speaker 03: I mean, obviously the district doesn't agree with all these allegations, okay, and that's part of, informs my argument, but I understand, I have to live with the allegations they've made, and that's where we are, and this was decided on a Rule 12 motion, [00:51:13] Speaker 03: We asked that, so that's the result. [00:51:16] Speaker 03: So I'm not in a position where I can contest the individual employee actions, but what I'm trying to say is, I think, again, there's nothing special about [00:51:28] Speaker 03: this allegation that they had they told Benedict and four days later another meeting occurred and then there's nothing that happens after that this alleged there's nothing special about that in terms of Manel right I mean you can have more than one rogue employee the issue is who are they [00:51:43] Speaker 03: What are their authorities? [00:51:46] Speaker 03: What are their legal authorities? [00:51:48] Speaker 03: What have they been delegated? [00:51:49] Speaker 03: Do they have the legal authority on the actions that are being challenged to bind the district? [00:51:53] Speaker 03: Are they acting consistently with the policy, or are they acting inconsistently with it? [00:51:58] Speaker 03: And if they're acting inconsistently with it, was it ratified by someone who did have final policy making authority? [00:52:03] Speaker 03: Those are all the defects here. [00:52:05] Speaker 03: They just haven't been alleged. [00:52:07] Speaker 03: You can give them every inference in the book, and it's not there. [00:52:10] Speaker 03: it's not enough and I think that's what Judge Wong recognized in the second order. [00:52:16] Speaker 05: Judge Wong said the policies don't prohibit the school from telling the parents and seemed to think that was enough to to dismiss the claim but I think the argument is that the decision about what to do if child has these issues should not be made by the [00:52:40] Speaker 05: district without the input of the parents. [00:52:44] Speaker 05: And so the parents should be involved. [00:52:47] Speaker 03: Well, OK. [00:52:49] Speaker 03: And again, I first have to go back and reiterate what I think I probably at least tried to say, which is that's not an established substantive due process right to say, I get to make the decision about a gender expression of identity at school. [00:53:07] Speaker 03: That the parent exclusively has that. [00:53:09] Speaker 03: And the school can't intrude on it. [00:53:11] Speaker 03: And therefore, by doing that, it has somehow violated, as they put it today, violated Troxel, a parent custody case. [00:53:19] Speaker 03: It's just not there. [00:53:21] Speaker 03: And look, we know what their destination is. [00:53:24] Speaker 03: Their destination is Washington, DC, I'm sure. [00:53:27] Speaker 03: But our point is that they just don't have a viable constitutional vehicle under established case law to take them there. [00:53:32] Speaker 01: Could I just ask your understanding of what [00:53:38] Speaker 01: constituted the violation that's being alleged here. [00:53:42] Speaker 01: Was it what happened at these GSA after-school sessions on May 4, 11, and 18? [00:53:52] Speaker 01: Is that the alleged constitutional violation? [00:53:56] Speaker 01: Or is the alleged violation that the guidelines or maybe the policies as a whole are [00:54:06] Speaker 01: unconstitutional, I guess, on their face. [00:54:10] Speaker 01: Is it one or the other? [00:54:11] Speaker 01: I mean, I may have to ask counsel about this, but what's your understanding? [00:54:16] Speaker 03: I've thought that it's not an either-or. [00:54:18] Speaker 03: They've linked them. [00:54:19] Speaker 03: That's the way I've always heard the way they've presented it. [00:54:22] Speaker 01: Well, they have to be linked to do the Monell elements, right? [00:54:27] Speaker 01: So you can't get away from the linkage, but I'm still [00:54:31] Speaker 01: I mean, under Monell, you need a constitutional violation to get to the Monell elements unless the policy itself is unconstitutional. [00:54:44] Speaker 03: What they've said today is they've said that the guidelines plus the actions of the employees, which they do not want to separate, they've rejected that precept. [00:54:56] Speaker 03: And they've said that all of that together [00:54:59] Speaker 03: Violates troxel. [00:55:00] Speaker 03: I think because what they said is is that that it embodies a presumption of parental unfitness and substituting school judgment for parent judgment in the specific topic of gender expression and identity I think that's what they said judge and [00:55:17] Speaker 03: Again, I don't think there's authority for that. [00:55:23] Speaker 03: When you start parsing it on Monell, they have significant problems to establish district liability, even if you take everything they've said is true. [00:55:33] Speaker 03: So I think that's why the district court was right and that the case should be affirmed. [00:55:39] Speaker 03: And you can do it on the constitutional right grounds or you could do it on the municipal liability grounds. [00:55:44] Speaker 03: You've got two orders. [00:55:46] Speaker 03: Yeah, the Monell was the second one and that's technically the one on the First Amendment complaint But Judge Wong noted in a footnote that hey already looked at the Constitutional too So you just need one of the two and either one of them. [00:55:57] Speaker 03: I think supports the the dismissal here Thank you, I appreciate the time to answer all your questions. [00:56:06] Speaker 01: Thank you counsel [00:56:07] Speaker 01: I'm going to give you 30 seconds. [00:56:09] Speaker 01: I want to make sure we're not putting any words in your mouth. [00:56:12] Speaker 01: So why don't you? [00:56:14] Speaker 02: I promised myself I wouldn't say anything unless I had one discreet thing, and I don't. [00:56:18] Speaker 02: So unless there are any questions. [00:56:19] Speaker 02: All right. [00:56:20] Speaker 05: Well, actually, we've all been debating, again, what your substantive due process claim is, which has to be narrowly defined under constitutional precedent. [00:56:35] Speaker 02: Can you state it for us as best you can? [00:56:46] Speaker 02: Well, there was one point I was going to address with the court, which was the Troxel issue. [00:56:52] Speaker 02: It is far more than a child custody case. [00:56:55] Speaker 02: Troxel is talking about the deference to the parents when the state interferes with a decision affecting the best interest of the child. [00:57:03] Speaker 02: That's the constitutional law. [00:57:04] Speaker 05: But it talks about injecting themselves into it. [00:57:07] Speaker 05: So they're forcing the custodial mother to allow, I think it was grandparents, visitation. [00:57:13] Speaker 05: Correct. [00:57:13] Speaker 05: And it says you can't inject yourself. [00:57:16] Speaker 05: Here, the school's not injecting. [00:57:19] Speaker 02: Well, the Justice O'Connor's heart of her decision was that the judge was affording, and the statute was affording, no deference at all to the parents. [00:57:30] Speaker 02: That's the problem with the district secrecy policies writ large, the guidelines, the FAQ, all of that, is there's no deference to the parents. [00:57:39] Speaker 05: But that can't be a substantive due process right, can't be no deference to the parents. [00:57:46] Speaker 05: Recognized by the Supreme Court, they've told us not to expand substantive due process. [00:57:52] Speaker 05: You've got to fit it in a box that they've identified. [00:57:57] Speaker 02: It's clearly downstream of the long-standing presumption that fit parents are presumed to act in the best interest of the child. [00:58:03] Speaker 02: That's the substantive due process right that what Justice O'Connor has taken to task in Troxel is [00:58:11] Speaker 02: a presumption that the judge could do it better. [00:58:13] Speaker 02: These district policies are saying the district can do it better. [00:58:17] Speaker 02: It has the same infirmity in light of that. [00:58:19] Speaker 02: That would be my position. [00:58:21] Speaker 01: Thank you, counsel. [00:58:25] Speaker 01: Well, it's been an interesting morning. [00:58:28] Speaker 01: And we really appreciate these arguments. [00:58:31] Speaker 01: They went a little longer, but it's a challenging case. [00:58:37] Speaker 01: And the panel appreciates your briefing, your arguments. [00:58:41] Speaker 01: And we'll take the case now as submitted. [00:58:44] Speaker 01: And it's now our turn to grapple with all of this. [00:58:47] Speaker 01: So thank you very much. [00:58:49] Speaker 01: The case is submitted. [00:58:50] Speaker 01: Counsel are excused. [00:58:51] Speaker 01: And the court will stand in recess.